Re: 6/20/03 - [Right of Publicity] Tuscaloosa News: Local artist masters Tiger; Tuscaloosa painter wins court battle with Woods; Golfchannel.com/AP: Court Rules Against Tiger
Local artist masters Tiger
Tuscaloosa painter wins court battle with Woods
By Stephanie Hoops
Staff Writer
June 21, 2003
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[picture]
Tuscaloosa artist Rick Rush poses on Friday with his print depicting Tiger Woods' 1997 victory at the Masters golf tournament. The 6th U.S. Circuit Court of Appeals ruled 2-1 on Friday that the print does not violate federal trademark law.
Staff photo | Robert Sutton
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Someone finally beat Tiger Woods -- a Tuscaloosa artist. Artist Rick Rush learned on Friday that he'd won a five-year-long court battle with Woods that gained nationwide attention because of its First Amendment implications.
The 6th U.S. Circuit Court of Appeals in Cincinnati ruled 2-1 that Rush's painting depicting Tiger Woods' 1997 victory at the Masters Tournament does not violate federal trademark law.
Cleveland-based ETW Corp., the golfer's licensing agent, filed the claim against Rush's Tuscaloosa publishing house, Jireh Publishing Inc.
“We hold that, as a general rule, a person's image or likeness cannot function as a trademark," Judge James Graham wrote in the majority opinion.
“ETW asks us, in effect, to constitute Woods himself as a walking, talking trademark."
It was the first time in 27 years that Jireh had been sued for trademark infringement, said Rush's brother and co-owner of the company, Don Rush.
At issue was Rush's 1998 painting “The Masters of Augusta," which commemorated Woods' 1997 victory at the Georgia tournament. Jireh produced limited-edition prints of the painting for sale.
The court's opinion held that Rush's right to free expression was more compelling than Woods' right to his trademark.
“After balancing the societal and personal interests embodied in the First Amendment against Woods' property rights we conclude that the effect of limiting Woods' right of publicity in this case is negligible and significantly outweighed by society's interest in freedom of artistic expression," Graham wrote.
Rush got word of the decision early Friday morning.
“This is a glorious day for all creative people in America because it has ramifications," Rush said.
Court briefs were filed supporting Rush's position by organizations such as Time Inc., The New York Times Co. (owner of The Tuscaloosa News), The Reporters Committee for Freedom of the Press and the American Society of Media Photographers.
Unions representing professional baseball and football players and the Screen Actors Guild filed court briefs in support of Woods' position.
ETW has the exclusive right to use Woods' name, image, likeness, signature and all other publicity.
Woods sits as chairman of the board at ETW. The company has not ruled out an appeal to the U.S. Supreme Court.
There were 250 prints made of Rush's painting, and each had a retail price of $700. All of them sold.
In addition to asking the court to stop Rush from reproducing Woods' image, ETW sought the proceeds from the sale of the prints.
The painting showed Woods in three golf poses with the Augusta National Golf Clubhouse in the background and likenesses of famous golfers including Arnold Palmer, Sam Snead, Ben Hogan, Bobby Jones and Jack Nicklaus looking at Woods.
“A piece of art that portrays a historic sporting event communicates and celebrates the value our culture attaches to such events," Graham wrote. “It would be ironic indeed if the presence of the image of the victorious athlete would deny the work First Amendment protection."
The court's decision upheld a ruling by a Cleveland federal judge in April 2000 against Woods. In a dissent Friday, Judge Eric Clay said he would have sent the case back to the Cleveland court for trial to let a jury decide. ETW had presented evidence that consumers might be confused about whether Woods was sponsoring the painting, Clay wrote.
“It is clear that the prints gain their commercial value by exploiting the fame and celebrity status that Woods has worked to achieve," Clay wrote. “The right of publicity is not outweighed by the right of free expression."
Rush, who calls himself “America's sports artist," has created paintings of sports figures including Michael Jordan, Mark McGuire and Paul “Bear" Bryant.
Despite the lawsuit, Rush said he holds no hard feelings against Woods.
“He's still a great golfer," he said. “I'm just glad that we won."
Reach Stephanie Hoops at stephanie.hoops@tuscaloosanews. com or 722-0204.
Material from the Associated Press was used in this report.
tuscaloosanews.com
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Court Rules Against Tiger
By The Golf Central Newsroom - June 20, 2003
CINCINNATI, Ohio (AP) -- A painting depicting Tiger Woods' 1997 victory at the Masters does not violate federal trademark law.
The 6th U.S. Circuit Court of Appeals ruled 2-1 Friday to reject the claim by Cleveland-based ETW Corp., the golfer's licensing agent, against Jireh Publishing Inc.
Woods is board chairman of ETW, which claims the exclusive right to market his name, image, likeness and signature.
"We hold that, as a general rule, a person's image or likeness cannot function as a trademark," Judge James Graham wrote in the majority opinion.
"ETW asks us, in effect, to constitute Woods himself as a walking, talking trademark."
Lawyers for ETW did not return messages Friday.
Jireh Publishing, of Tuscaloosa, Ala., published the painting by Rick Rush, who has created paintings of such sports figures as Michael Jordan, Mark McGuire and Bear Bryant.
At issue was Rush's 1998 painting "The Masters of Augusta," which commemorated Woods' 1997 victory. Jireh produced limited-edition prints of the painting for sale.
The painting showed Woods in three golf poses with the Augusta National clubhouse in the background and likenesses of golf greats - including Arnold Palmer, Sam Snead, Ben Hogan, Bobby Jones and Jack Nicklaus - looking at Woods.
The court's decision upheld a ruling by a Cleveland federal judge in April 2000 against Woods. In a dissent Friday, Judge Eric Clay said he would have sent the case back to the Cleveland court for trial to let a jury decide. ETW had presented evidence that consumers might be confused about whether Woods was sponsoring the painting, Clay wrote.
"It is clear that the prints gain their commercial value by exploiting the fame and celebrity status that Woods has worked to achieve," Clay wrote. "The right of publicity is not outweighed by the right of free expression."
The unions representing professional baseball and football players, plus the Screen Actors Guild, filed court briefs in support of Woods' claim. Time Inc., The New York Times Co., The Reporters Committee for Freedom of the Press and the American Society of Media Photographers filed briefs supporting Jireh.
Copyright 2003 Associated Press. All rights reserved.
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